Musthafa And 3 Others vs The State Of Telangana
2021 Latest Caselaw 913 Tel

            HONOURABLE SRI JUSTICE K. LAKSHMAN

              CRIMINAL PETITION No.2350 OF 2021

ORDER:

This petition is filed under Section 482 of Cr.P.C., seeking to

quash the proceedings in Cr.No.386 of 2021 on the file of SHO,

Rajendranagar P.S., Cyberabad against the petitioners/accused and for

a consequential direction as to the Police to return the seized property.

The petitioners are accused in the above said Crime. The offences

alleged against them are under Sections 188, 272 and 273 of IPC

Section 20(2) of the Cigarettes and Other Tobacco Products

(Prohibition of Advertisement and Regulation of Trade and

Commerce, Production, Supply and Distribution) Act, 2003 (for short

'COTP Act').

2. Heard learned counsel for the petitioners, and learned

Assistant Public Prosecutor. Perused the entire material available on

record.

3. The learned counsel for the petitioners would submit that

the Sub-Inspector of Police, Rajendranagar P.S., Cyberabad is not

having power to register a case in Cr.No.386 of 2021 for the offences

under Sections 188, 272 and 273 of IPC Section 20(2) of the COTP

Act. He would further submit that the allegations against the

petitioners are that they are selling the tobacco products to the

customers illegally in order to gain wrongful profits. Thus, the

accused have committed the aforesaid offences. The learned counsel

by referring to the provisions of COTP Act, including 20 (2), would

submit that the allegations made in the charge sheet do not attract the

ingredients of the aforesaid provisions and, therefore, the aforesaid

offences alleged against the petitioner are liable to be quashed. In

support of the same, he has placed reliance on the judgment in

Chidurala Shyamsubder v. State of Telangana1 rendered by the

High Court of Judicature at Hyderabad for the States of Telangana and

Andhra Pradesh. Whereas, the learned Public Prosecutor has tried to

distinguish the principle laid down in the said judgment to the facts of

the present case.

4. Perused the judgment in Chidurala Shyamsubder (supra),

wherein a learned Single Judge of the High Court following the

guidelines laid down by the Hon'ble Supreme Court in State of

Haryana v. Bhajan Lal2, held that the police are incompetent to take

cognizance of the offences punishable under Sections 54 and 59 (1) of

the Food Safety and Standards Act, 2006 (for short 'FSS Act'),

investigating into the offences along with other offences under the

provisions of the Indian Penal Code, 1860. It was further held that

. Crl.P. No.3731 of 2018 & batch, decided on 27.08.2018

. 1992 Supp. (1) SCC 335

filing charge sheet is a grave illegality, as the Food Safety Officer

alone is competent to investigate and to file charge sheet following the

Rules laid down under Sections - 41 and 42 of FSS Act. In the

present case, the police have registered the crime for the offences

under Sections 188, 272 and 273 of IPC Section 20(2) of the COTP

Act. Therefore, the said proceedings in Cr.No.386 of 2021 against the

petitioners herein are contrary to the principle laid down in Chidurala

Shyamsubder (Supra) and, therefore, the same are liable to be

quashed.

5. As far as Section - 20 (2) of the COTP Act is concerned, as

stated above, the allegations against the petitioners are that they are

selling the tobacco products to the customers illegally in order to gain

wrongful profits. In view of the said allegation, it is apt to refer to

Section - 20 (2) of the COTP Act for better appreciation of the case

and to decide the issue in question, and the same is as under:

"20. Punishment for failure to give specified warning and nicotine and tar contents.- (1) ...

(2) Any person who sells or distributes cigarettes or tobacco products which do not contain either on the package or on their label, the specified warning and the nicotine and tar contents shall in the case of first conviction be punishable with imprisonment for a term, which may extend to one year, or with fine which may extend to one thousand rupees, or with both, and, for the second or subsequent conviction, with imprisonment for a term which may extend to two years and with fine which may extend to three thousand rupees."

6. Thus, Section 20 of COTP Act deals with punishment for

failure to give specified warning and nicotine and tar contents. As

stated above, the allegation against the petitioners herein is that they

purchase the tobacco products and sell them to customers at higher

prices to gain wrongful profits. The petitioners are neither traders, nor

suppliers/distributors of cigarettes or any other tobacco products.

There is no allegation in the charge sheet against the petitioners that

they are carrying on the trade or commerce in contraband or any other

tobacco products without label and specified warning on the said

products. In view of the same, the contents of the charge sheet lack

the ingredients of Section 20 (2) of the COTP Act. In the entire

charge sheet, there is no allegation that the seized products do not

contain the labels as well as statutory warning. Therefore, registering

the crime for the said offence against the petitioners is also contrary to

Section 20 (2) of COTP Act. Thus, the offence under Section 20 (2)

of COTP Act is also liable to be quashed against the petitioners.

7. In view of the above discussion, the present Criminal

Petition is allowed, and the proceedings in Cr.No.386 of 2021 on the

file of SHO, Rajendranagar P.S., Cyberabad, are hereby quashed

against the petitioners - accused.

8. It is submitted by the learned counsel for the petitioners

that the seized property is in the custody of Police, Rajendranagar

P.S., Cyberabad and sought direction to the Station House Officer,

Rajendranagar P.S., Cyberabad, to return the seized property to the

petitioner.

9. Since the proceedings in the aforesaid case are quashed

against the petitioners/Accused in Cr.No.386 of 2021, the Station

House Officer, Rajendranagar P.S., Cyberabad, is directed to return

the seized property on proper identification and verification of

ownership of seized property under due acknowledgment.

As a sequel, miscellaneous petitions pending, if any, in the

criminal petition, shall stand closed.

__________________ K. LAKSHMAN, J 23.03.2021 dv